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i. The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
b. 5th AMENDMENT just know privilege against self-incrimination and due process
i. No person . . . shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law.
c. 6th AMENDMENT enjoy the right to assistance of Counsel
i. In all criminal prosecutions, the accused shall enjoy the rightto have the
Assistance of Counsel for his defense.
2. INCORPORATION (Zero? Total? Selective?) For our purposes, the Bill of Rights applies to both
feds and states, and in the exact same way. Identical application to states and feds.
a. DC v. Heller: Selective incorporation theory has been used to fully incorporate particular
rights contained in the Bill of Rights to the states through the 14 th Amendment Due Process
Clause, based on the idea that those rights are fundamental to the American scheme of ordered
liberty and justice.
i. Continuum: Ordered Liberty/Fundamental Fairness Selective Incorporation
Total Incorporation.
1. Weve never been at total incorporation (Bill of Rights all apply to states
through 14th Amendment), but started at ordered liberty/fundamental fairness
and ended up at selective incorporation. 3A regarding quartering and 5A
regarding GJ have never been applied to the states, so most judges fall
somewhere in the selective incorporation realm.
that violated the basic right of privacy to be free from unreasonable state
intrusion.
3. Reasons: Federal government has been doing this since 1914 so its not going
to practically fetter law enforcement too much, other remedies have failed, and
the right to privacy is basic.
iv. 1984 US v. Leon good faith exception to exclusionary rule.
1. GOOD FAITH EXCEPTION: Evidence obtained by an officer in a good
faith but mistaken belief that a warrant is based on sufficient probable
cause will NOT be excluded.
a. This is a judicially created doctrine.
2. This exception limits the exclusion remedy to situations where the search
warrant is so facially deficient in failing to particularize the place to be
searched or the things to be seized that the executing officer cannot
reasonably presume it to be valid.
a. Exclusionary remedy is not based on deterring magistrates or judges
who make mistakes, but on deterring PO misconduct. PO cannot be
deterred if they relied in good faith on the warrant that was invalid.
Search Warrant Process:
Cops present facts to Magistrate
v. Facts: Cops gathered evidence by acting in reasonable reliance upon a warrant issued
by a magistrate, thats later found to be unsupported by probable cause.
vi. Holding: Evidence is admissible because the Police had objectively reasonable reliance
upon a warrant issued by a judge.
1. Significance - evidence obtained in good faith by police relying upon a search
warrant that subsequently is found to be deficient may be used in a criminal
trial.
vii. Rationale: the purpose of the Exclusionary Rule is to deter police misconduct.
Judicial deterrence is NOT a goal. Penalizing an officer for the magistrates error
doesnt deter police misconduct. The cost of letting criminals go free is greater than the
benefit of deterring police misconduct, so the exclusionary rule shouldnt apply.
viii. RULE If the affidavit is written in good faith, then the magistrate messes up, its still
admissible because there is no need to deter magistrates who are judicial officers. If the
affidavit was written in bad faith by the police, evidence is inadmissible.
1. Final rule coming in Hudson and Herring.
2. Objectively reasonable reliance by police = admissible.
c. Drawing the contours of the Good Faith Exception (Brennan Dissent says honoring warrants
made w/o P/C on this GF exception only lets guilty criminals walk free).
i. Exception to the Exception: The Good Faith exception goes away and evidence is still
suppressed if:
1. (1) Affidavit knowingly gives false info by PO who is reckless (PO lied),
2. (2) Judge wholly abandons his role (rubber stamp),
3. (3) If PO goes too far beyond search warrants face (not in good faith), or
4. (4) Warrant is facially deficient
3. ADDITIONAL CIVIL REMEDIES FOR DAMAGES: because exclusionary rule has its drawbacks
a. Bivens action cause of action to bring a tort claim against the Federal Gov
b. 1983 action cause of action against the state.
c. **Note 1983, Bivens and motion to suppress all depend upon on finding a 4 th am violation (or
any rights, privileges or immunities secured by the C)
4. EVIDENCE OBTAINED BY PRIVATE PARTIES NOT COVERED BY 4th AM:
a. ASK: IS THIS GOVERNMENT ACTIVITY?
b. Jacobsen
i. RULE: 4th Amendment does NOT apply to private individuals, it only applies to
limiting searches by the government and government agents.
ii. Facts: Fed Ex (private) opened package, the DEA reopened it. Evidence is not
suppressed because it was discovered by a private party, so no 4 th Amendment violation
occurred.
iii. Because the 4th Amendment doesnt apply, we dont even ask whether the exclusionary
rule should apply.
c. EXCEPTION: 4th Amendment DOES apply if the private party acts as an agent or
instrument at the direction of the government (Burdeau).
i. E.g., undercover agents or confidential informants acting on behalf of the government.
5. CURRENT LAW ON THE EXCLUSIONARY RULE (the remedy for 4th am violation)
a. Mapp said the exclusionary rule is broad, and other cases limited the scope of Mapp.
b. Hudson v. Michigan (2006) distinguishes remedy from violation
i. Holding: A violation of the "knock-and-announce" rule (which states, Fourth
Amendment requirement that police officers knock, announce their presence, and wait a
Hudson and
reasonable amount of time before entering a private residence) by police does not
Herring
require the suppression of the evidence found during a search.
resolve
ii. RULE: Categorically, knock and announce violations will NEVER be grounds for
Exclusionary
suppression/use of the exclusionary remedy.
Rule law
1. Civil rights remedies are good enough to cover knock and announce violations.
2. Suppression is such an extreme remedy.
3. Also, suppression is a deterrent. We dont need to deter POs from not knocking
and announcing minor issue compared to gravity of suppression.
4. Whether the exclusionary rule applies is a SEPARATE QUESTION than
whether the individuals 4A rights were violated.
c. Herring v. US (2009) Expands good faith exception by requiring mens rea (or police
culpability) along with deterrence (think about it you cant deter someone who didnt know
they were doing anything wrong in the first place)
i. Facts: Cops arrest D after finding arrest warrant on a database. Cops then find drugs and
a gun. Minutes after the search, the police discover that a police clerk had negligently
failed to recall the arrest warrant (which was no longer valid).
ii. Holding: This is still admissible, even though it was police misconduct it cannot be
deterred because there was no police culpability above mere negligence.
iii. RULE: Suppression turns on the culpability of the police (mens rea) and the
potential of exclusion to deter wrongful police conduct.
1. Requirements for the Exclusionary Rule to Apply:
a. (1) Deterrence (only deterrence if PO has mens rea > negligence)
b. (2) Deterrence outweighs costs
i. Its rare to get to (2) if (1) is not met because no costs are
known to outweigh deterrence.
2. Suppression through the exclusionary rule is no longer an automatic
consequence of a 4th am violation. The police must have the appropriate mens
rea above mere negligence to trigger the exclusionary rule.
a. The 4th Amendment violation and the exclusionary rule are two
separate questions.
3. Appreciable Deterrence (benefit/cost balancing to ensure PO conduct is
sufficiently culpable that deterrence is worth the costs) and Culpability of
Police (new factor that requires PO conduct to be sufficiently deliberate that it
can be meaningfully deterred)
a. Why mens rea? Only get deterrence benefits with bad conduct, thus
there needs to be a mens rea requirement.
4. Culpability required to trigger exclusion: intentional, knowingly, reckless,
or grossly negligent (recurring or systematic negligence likely enough for sup)
a. Negligence alone is not enough unless systemic/recurring.
b. Deterrence and culpability are objective questions.
c. Do not apply good faith anymore; ask whether the proper mens rea was
met. If yes, suppression is the remedy.
5. To trigger the exclusionary rule, police conduct must be sufficiently deliberate
that exclusion can deter it and sufficiently culpable.
6. Other 4th Am thoughts:
a. Dismissal of crime has never been an appropriate remedy (think of Cardozos critique why
should D walk for a constables error?) only exclusion of evidence.
b. Other crimes/charges for violation of 4th:
i. Bivens, 1983, and Federal prosecution of fed civil rights crime.
c. Remember, 3 ways of limiting suppression of E
i. Good Faith Exception
ii. Some type of 4A violationKnock and announce
iii. Requisite culpability requirement
d. NEW RULE: The new test of defining a search and seizure is whether there is a
REASONABLE EXPECTATION OF PRIVACY.
i. 2 Requirements for the 4th Amendment to Apply:
1. (1) Person exhibited actual, subjective expectation of privacy and
2. (2) That the expectation of privacy is objectively reasonable in society.
a. (2) is most important as the court decides reasonableness because defendant
can completely control (1), so (1) has basically gone away.
b. Ex: D thinking he is acting in private is not enough, that belief must be
objectively reasonable. Obviously cant reasonably expect people wont
believe D is on the phone, as hes in the glass boothcan reasonably
expect that he wont be heard
ii. PUBLIC EXPOSURE/ASSUMPTION OF THE RISK EXCEPTION: What a person
knowing exposes to the public, even in his own home or office, is not protected by the
4th Amendment because there is no REP. But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected.
1. PO arent expected to avert their eyes.
2. Think about Hoffa and White (if one party consents to taping, there is no 4th
Amendment violation).
3. Think about bank records (Miller public exposure), pen registers/mail covers
(Smith v. Maryland), and garbage (CA v. Greenwood).
2. DEFINING REP AND APPLYING KATZ How do we define reasonable expectation of privacy?
a. PUBLIC EXPOSURE CA v. Greenwood (1988)
i. Facts: Police examined Ds trash which had been left on his curb. Cops find narcotics.
ii. Holding: This is NOT a search because there is no REP in your trash because it was given to
a third party and was readily accessible to the public.
1. Public exposure of trash forfeits any REP in the bags, and once the trash is
conveyed to a third party, the homeowner assumes the risk that they will turn the
bags over to police.
a. Counterargument: But trash was sealed in opaque bags, no expectation that
police will go through it.
b. CURTILAGE v. OPEN FIELDS Oliver v. US (1984)
i. The physical setting is important in determining whether the 4 th Amendment is violated.
1. Home Strong 4th Amendment Protection
2. Curtilage Moderate 4th Amendment Protection
3. Open Fields NO 4th Amendment Protection
ii. A person enjoys the highest expectation of privacy in their home.
iii. Curtilage is a protected area and is a search, open fields are not because:
1. Not explicitly in 4th Am (literal language argument)
a. Not a person, house, paper, or effect - 4th am is meant to only protect
intimate activities and open fields dont provide that setting.
2. No REP because lands are accessible by public; court doesnt care that the
Legislature believes there is REP by making trespass a crime.
a. **Note 2 different tests means trouble in future. Property law does not
matter here at all.
iv. Curtilage: land immediately surrounding and associated with the house is protected by the
4th Amendment.
1. Curtilage factors: proximity to house, does an enclosure surround the area, use of
the area, and steps taken to protect the area from public observation.
v. Open fields: land is accessible by public and is unoccupied and undeveloped
1. Police can walk through open fields, woods, etc and it is not a search because the
setting is not intimate and private.
c. AERIAL SURVEILLANCE Florida v. Riley (1989)
i. Helicopter viewing marijuana with naked-eye in partially covered greenhouse from
400 ft. above is NOT a search b/c no REP:
1. Vantage point, as well as physical setting, matter in the REP analysis.
2. Its probable for a helicopter to view your property
a. Probable means happens routinely, this is an important distinction from
possible (dissent argues that its possible the government will do anything.
Saying the public could do something is different from saying they would.)
3. No intimate detail revealed, no interference with the use and enjoyment of your
land (no dust, no wind, etc)
4. 400ft elevation was lawful under FAA regulations.
a. The fact that it was lawful is important.
b. Inapposite to Oliver which ignored trespass laws. Here they care about
compliance with the law (of obvious importance)
i. Cynically if local laws help the case, they use it.
5. Court also points out that helicopters hovering 400 ft over your property are not all
that rare.
d. SENSE ENHANCING DEVICES Dow Chemical aerial photo of complex used to reveal
pollution not a search because
i. Where a device merely enhances the sensory perception and facilitates surveillance
that otherwise would be possible without the enhancement, the 4 th Amendment is NOT
implicated.
1. Flashlights, aerial cameral, photo/video recording, and drug-detection dogs do not
implicate the 4th Amendment.
ii. This was a plain view of the plant, lawful fly over, analogous to open field
iii. Court says (inapposite to Kyllo) that super details dont matter because not intimate.
iv. Court also ignores the fact that this was a $22K camera, which would not be in public use.
Generally available to the public is an important factor, according to Kyllo.
1. Knotts: Attaching electronic tracking device to a car and monitoring it on a public
road is NOT a 4th Amendment violation because the movements of the car could
have been observed by the naked eye.
e. BUSINESSES Have a REP and are covered by the 4th Amendment.
f. DETENTION FACILITIES
i. Hudson v. Palmer: No REP that you will be free from intrustion your prison cell, no search
and seizure because of security concerns.
ii. The nature of the place can dictate whether a REP exists.
g. VEHICLES
i. There is a general expectation of privacy in cars, but its reduced by the extensive
motor vehicle regulations.
1. Cardwell v. Lewis: Take picture/print of tire tread not a search b/c public can do
it, its knowingly conveyed to whole world. Public exposure argument.
2. Paint chip off car not a search, whole world can see it (might still be a seizure)
3. New York v. Class: VIN requirement no REP w/ VIN and the Cops get to view it.
But thats it. Only get to eyeball vehicle, if they move papers its a search because a
cars interior is subject to 4th Amendment protection.
Homes (100%)
OFFICER SENSES
i. Idea starts with the Plain View (knowingly placed in public)
ii. Cops who are lawfully present in a certain place can use their senses to detect
something without it being a search.
iii. But how much can they enhance their senses?
1. OK if the device merely enhances sensory perception and facilitates surveillance
that otherwise would be possible without the enhancement flashlight, binoculars,
telescope, drug dogs, aerial cameras, etc.
2. THERMAL IMAGERS: Kyllo (2001) thermal imagers to detect heat emanating
from a house, Court said its a search because:
a. No outside observer could have gathered this information without
physical intrusion, the device was not in general public use, and the
information came from our most sacred, intimate place the interior of
our homes. This is presumptively unreasonable without a warrant and
is a 4A violation.
i. All details of home are considered intimate. There is a firm line
drawn at the entrance to the house for 4A purposes.
b. Tech is not in general public use (open question)Big points are
technology is not in general use and this is the inside of our homes
interior of the house always protected under Katz std.
DRUG DOGS US v. Place - dog sniff of luggage at airport after temporary seizure is not a
search!
i. The use of a drug-detection dog at a public airport to determine the presence of
contraband does not trigger 4th Amendment protections.
Binary result
1. REP is lower because this was a sniff of the luggage, not of the Ds body (higher
is relevant in
REP).
determining if
ii. RS that a package or piece of luggage contains contraband or evidence of a crime
there is a
justifies a temporary seizure of it.
1. Seizure must be limited in (1) time and (2) scope.
search
a. 90 minutes was too long here, it was excessive and unreasonable.
iii. Not a search because:
1. This is a very limited intrusion its only a binary result, either yes or no; so no
intimate details; AND
2. The smell is outside the luggage, already wafted out.
iv. Extension of binary reasoning
1. On the spot test to yield binary result of whether white powder is cocaine, is not a
search because very limited results.
v. Government interest in briefly detaining personal effects outweighs the minimal intrusion to
the owner.
j.
vi. Fla. v. Jardines; court held that a dog sniff at the houses door IS a search because of the
private nature of our house. This literally violated the 4 th Amendments persons, houses,
papers, or effects language.
1. Police were gathering information in the curtilage of the home, which is protected
(on front stoop).
2. Curtilage is part of the home itself for 4th Amendment purposes.
3. There was no implied license from the homeowner to bring the dogs, but police
themselves could knock like any other private citizen because there is an implied
license for that purpose. pushes the physical tresass thought process too
3. PHYSICAL INTRUSION MODERN DEFINITION OF SEARCH:
a. US v. Jones (2012) - importance of this case is probably diminished by growing technology and cell
phones (Government doesnt need a physical trespass of our property to monitor us).
i. Facts: Cops installed a GPS tracking device on undercarriage of Ds car, and tracked its
movements for 28 days without probable cause.
ii. Holding: GPS on car and tracking is a search b/c:
1. Physically occupied/trespassed private property
2. Framers wouldve seen this as a search (original intent)
3. This violates the literal language b/c this is an effect
a. This holding depends on the fact that a car (and luggage) is an effect. If
NOT a person, house, paper and effects, then stay with Katz progeny!!
4. This holding is diminished by the fact that a physical trespass of property is
meaningless b/c the government no longer needs GPSs on cars. They can just track
us via our phones, data aggregation/mining, cell site location info (which tracks
every move), etc.
a. The kind of offense (terrorism or DUI) does NOT matter when determining
if it was a search.
iii. There are TWO WAYS to define a search: (1) Katzs REASONABLE EXPECTATION
OF PRIVACY test added to, and did not substitute (2) the common law TRESPASS/
PHYSICAL INTRUSION TEST from Jones and Jardines.
1. Physical Intrusion Test: (a) Unlicensed (b) physical intruded on (c) private
property by the government and its (d) an enumerated property (person,
house, effect, papers) then its a search.
2. Either is enough to be a search. Jones & Jardines dont address REP at all, so they
dont change the REP standard. Physical trespass is so specific that it wont cover a
lot of police action.
b. Jardines
i. Search requires (1) constitutionally protected area and (2) unlicensed physical trespass.
ii. Dog alerted on front porch. PO stayed too long beyond implicit license for people to knock
on your door and wait. Having the dog at the door was unreasonable and beyond this
implicit license. The dog alert was the PC for the warrant. Alert was obtained through a 4 th
Amendment violation, so the search is unconstitutional.
Probable Cause
4th Amendment Right of the people to be free of unreasonable searches and seizures and no Warrants
shall issue, but upon probable cause.
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Initial PC determination made by: (1) Magistrate when seeking warrant or (2) PO if they act
without a warrant
Police must have justification BEFORE they conduct a search or seizure. The required level of
justification will depend on the scope and degree of the intrusion.
o PC Needed for arrest/search
o RS Needed for stop/frisk
o Balance importance of societal interest and individual privacy Needed for
administrative search
o No grounds Subject confronted but free to leave
1. PC STANDARD: Probable cause is the level of proof the government must show for searches and seizures
(arrests).
a. PC is the quantity of facts and circumstances within the POs knowledge that would warrant a
reasonable person to conclude that the individual in question has committed a crime (arrest)
or that specific items related to criminal activity will be found at the particular place (search).
i. PC is just a standard somewhere more than scintilla/hunch but less than prep of
evidence (51%), clear and convincing ~75% and beyond a reasonable doubt ~90%.
ii. Must include specific, concrete facts and not merely conclusory speculations.
b. A POs ulterior reasons are irrelevant if there is PC justifying a particular intrusion. (Whren)
2. RELIABILITY OF ANONYMOUS TIPS Illinois v. Gates (1983)
a. If the information is based on a POs own observations, credibility is usually presumed.
b. Anonymous Tip Process:
i. Informant (tipster or CI; tipster unknown to PO, both unknown to magistrate) Cops
(make an affidavit) Magistrate (never knows informants identity, making the reliability
of the tip hard to determine) Court
c. Old case law required both spurs of the Spinelli test to be met to allow in an affidavit from an
unknown informant. Spinelli test:
i. Basis of informants knowledge (how does the informant know what she claims to know),
and
ii. Reliable/Credibility of information (why should we believe this person)
1. Both prongs are aided by corroboration.
d. Holding:
i. To determine probable cause just apply a totality of the circumstances test to look at the
overall reliability of the tip, the Spinelli test is rejected.
1. Consider everything, including the two fundamental factors from Spinelli, but PC is
Look at ToC
a non-technical, common sense, practical, and fluid approach.
to determine
a. There is no neat set of legal rules for PC determinations.
PC, must find
2. If person IDs themselves AND the location of crime, PC is automatic (phone call
reliability!
after potential car wreck for swerving).
ii. Gates definition of probable cause fair probability, substantial chance of criminal
activity (Pringle adds reasonable ground)
1. **Note the standard of PC is the same for Cops (w/o warrant) and magistrate
e. Gates Inquiry by magistrate - Is there a fair probability or substantial chance that contraband
or evidence of a crime will be found in a particular place? If yes, PC is established.
i. A deficiency on one of the Spinelli prongs can now be compensated for by a strong showing
on the other prong, or by some other indicia of reliability. INDEPENDENT POLICE
CORROBORATION GOES A VERY LONG WAY IN THE PC ANALYSIS
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f.
Appellate review standard Did the Magistrate have a substantial basis for concluding that a
search would uncover evidence of wrongdoing? The 4th Amendment requires no more.
i. Very deferential to magistrate decision, examine the legitimacy of warrant at the time it was
issued (freeze the situation when the warrant was issued).
ii. Must look at all of persons places separately (car and house)Magistrates warrant must
remain location specific.
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a. Drugs and money found in car, PO arrested all 3 passengers. Not a search of the glove box cause it
was in plain view so PO was where he had a right to be.
b. If a reasonable inference could be made that any or all of the three people had knowledge of
and control over the cocaine, there is PC. PC does not go away by pointing to the fact that
there exists PC to search or seize another person.
c. Do police have P.C. with 33% chance? Yes, but this is a flawed analysis because this possession
crime can be committed by all 3 or 1.
i. Another synonym for P.C. reasonable ground for belief of guilt. This belief of guilt must
be particularized to the person to be searched/seized.
d. But the 9th Circ (Gourd) said that P.C. does not require preponderance
i. 50% is enough under P.C.
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ii. Was the arrest good? Yes, P.C. to arrest b/c of bag of crack in plain view.
iii. Did cops have the right to be there? Was the traffic stop lawful? Was initial stop valid?
Good
1. Yes, Ds conceded there was P.C. for bad driving (P.C. because Cops observed the
Fruits
traffic crime and Ds did it) so drugs in plain view are admissible because PO was
Exampl
where he had a right to be.
c. RULE Once you find PC to believe that a traffic violation occurred, PO are where they have
a right to be, so the plain view search and seizure is reasonable (no balancing).
i. Subjective motives of PO to stop a car for a traffic violation NEVER matters. If there
is PC for the traffic violation, actual motivation of PO doesnt matter.
ii. Race cannot be used to find P.C. under Totality of Circumstances, but Pretext arrest? Racial
profiling?
d. Whren is limited by Terry In Whren, Cops had P.C. that a traffic violation occurred. But to make a
car stop, you ONLY need reasonable suspicion (Terry).
4. DRAWING BLOOD IS A SEARCH: Schmerber v. CA drawing blood for DUI
a. RULE Generally, need search warrant to draw blood (physical intrusion of the human body
and REP), UNLESS there is an emergency/ special facts/exigencies.
i. Schmerber Special Facts The officer did not have time to get a warrant because he had
to take the suspect to a hospital to be treated for injuries and had to investigate the scene of
the accident. Thus, no time to seek out a magistrate and secure a warrant. This was an
emergency exceptionalso DUI case, exigency for alcohol level lowering over time
1. But Schmerber was in 1960s. It no longer takes this long to get a warrant.
ii. McNeely No bright line rule that alcohol dissipation is a per se exception to warrant
requirement to get blood in drunk driving situation.
a. Dissent: only need warrant if time to get warrant makes it practicable to do
so before evidence in blood is destroyed, otherwise per se kicks in.
2. This one fact alone is not an exigent circumstance exception. Need more special
facts in a case-by-case, fact specific analysis. court says if PO can get a warrant,
he still should; no bright line exigency.
iii. This physical evidence does NOT implicate the 5th Amendment because its physical so
its never excluded under the 5th Amendment because it doesnt meet the testimonial
requirement.
5. STRIP SEARCH AFTER ARREST - Florence (2012)
a. Warrant is NOT required for a strip search because PO gets automatic right to search you
after a full custodial arrest unless there is substantial evidence that POs response was
exaggerated. this is okay even though warrant was for failure to appear (not violent)
b. Close visual inspection of body is okay when:
i. Arrest based on warrant (he was arrested with a warrant)
ii. Going to general jail population, and
iii. No touching guards werent touching him and no intl humiliation.
6. NO SEARCH INCIDENT TO CITATIONS: Knowles - A Limit on Warrantless Searches (finally)
a. Speeding citation, then searched the car and found weed.
b. If cops issue a citation, they do NOT get to search the body because there is no arrest.
A Limit!
i. Because there is less PO danger and no need for evidence of a traffic offense (cant find
No
further evidence of speeding) the Chimel rationales dont support a warrantless search.
ii. But cop CAN order driver out of the car during traffic stop with RS (Mimms) and
Search
passengers (Wilson).
incident
1. This is a minimal intrusion beyond the stop itself and is justified by safety concerns.
to citation
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c. Remember, if full custodial arrest they can search you and there are few limits (can be done
for any crime, regardless of state laws).
7. CHEEK SWAB IS SPECIAL NEEDS SEARCH, NO PC/WARRANT REQD: Maryland v. King
a. DNA evidence obtained from cheek swab after assault arrest was matched to prior rape and D was
convicted.
b. When an arrest is made and supported by PC, taking and analyzing a cheek swab to test DNA
is a legitimate police booking procedure that is reasonable under the 4th Amendment although
it is a search.
i. Even if there is no PC and a search occurred, no warrant is required because a cheek swab is
less intrusive than needle stick for blood. Balance government need with intrusiveness on
individual.
ii. This is the first time PC/RS is not required for a search. This is a special needs case
No warrant and No PC required for the search.
1. For Special Needs, do the balancing test.
iii. What is a search?Generally, when you have to take something from a body, it is a search
(ie drawing blood, DNA, scraping nails, breatholyzer)finger prints probably arent but
who knows anymore.
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1. Vehicle exception generally no warrant required for cars if you have P.C.
(including containers)
2. Belton/Thornton/Gant SITA search a vehicle incident to an occupants arrest
if arrestee is w/in reaching distance of passenger compartment at the time of
search OR its reasonable to believe the vehicle contains evidence of the
offense of the arrest.
3. Bertine Inventory Search Inventory search after seizure of car.
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ii. To meet exigency of destroying evidence to break into a dwelling, the Cops must hear
specific sounds of destroying evidence. Arrest on street does not create an exigency on
its own to enter the house without a warrant.
1. Regular sounds like scuffling, or the fact that it is drugs are NOT enough.
iii. What should have Vale cops done? Freeze the scene!!Burden of Proof on State to
prove exigency existed
d. TEMPORARY SEIZURE OF PLACE: PO authority while they get warrant
i. Segura (seize by inside)
1. PO have authority to temporarily seize a place while procuring a warrant
if there is PC to arrest occupants.
2. Police have PC, make warrantless entry and seize the apartment (sit there for 19
hrs), until they get a S/W to prevent destruction of evidence.
ii. McArthur (seize by outside) Cops can prevent anyone from entering unless they are
monitored. Reasonable.
1. There was PC to search the home, the restriction was limited to two house,
and PO had good reason to believe he would destroy the weed before they
returned with a warrant.
2. This was reasonable because it was the least restrictive alternative (not a factor,
but an aside).held D on porch while warrant procuredthis is OK
e. NO HOMICIDE SCENE EXCEPTION TO S/W REQUIREMENT: still need a warrant.
i. Seriousness of crime is NOT an element that creates S/W exception.
ii. Initial entry is ok to check dangerous situation, but Cops cannot then comb the
scene.
1. They should freeze scene, then get S/W.
f.
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2. NO hot pursuit once guy DUId, then went home and PO showed up hours
later. Theres no public safety threat. Need to preserve BAC evidence is the
only valid justification, but entry was invalid. Needed warrant to enter home.
3. Case is an outlier b/c court looks at the gravity of the offense (which in
Wisconsin is only a misdemeanor) and generally seriousness of the crime is not
a factor. Extreme outlier here.
g. NEED WARRANT TO ENTER A HOME TO MAKE AN ARREST - Payton v. NY
i. An arrest warrant founded on PC implicitly carries with it the limited authority to
enter a dwelling where the suspect lives when there is reason to believe the suspect
is within.
1. ARREST WARRANT NEEDED FOR ARREST IN OWN HOME: Without
an arrest warrant, the home is a sanctuary so an arrest warrant is required
to enter and effect a non-exigent arrest of the subject in his own home.
a. While PO needs warrant to search or arrest in a home, there is no
warrant requirement for arrests made in public.
b. There is a firm line drawn at the doorway of the home, and absent
exigent circumstances that line cannot be crossed without a warrant.
c. Search or seizure inside a home without a warrant is presumptively
unreasonable.
d. You must have a warrant to enter the home, but it doesnt have to be a
search warrant (can be an arrest warrant for occupant).
e. Ex: Arrest Warrant for A, Cops can enter ONLY As house b/c the arrest
warrant gives them implicit authority to enter As home.--also, hearing
music and lights from house okay to believe suspect is within his own
homecant enter abandoned house under same pretext.
2. But, in Steagald, this implicit authority only allows the Police to search in Ds
home, not his buddies. Must have S/W for other homes.
a. SEARCH WARRANT NEEDED FOR ARREST IN 3Ps HOME:
Cant search the home of a third party armed solely with the arrest
warrant for a non-resident. PO would need search warrant for
third-partys house.
i. Must have PC to believe the suspect is on the 3Ps property.
ii. This is a limit on Peyton.
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i. Rationale:
1. Ready Mobility of Car they may leave while you get a S/W
a. Theoretical idea, can still search cars that arent mobile (motor homes)
2. Reduced expectation of privacy b/c cars are highly regulated
a. Pervasive regulations lead to reduced EP (more important rationale than
mobility)
ii. Juvenile created PC by saying he had drugs, government action, so warrant not needed because
its a vehicle.
iii. Dyson says that Carney is a bright-line rule.
1. There is no separate exigent circumstances requirement to search a car, including
containers, without a warrant as long as there is PC to search the vehicle.
a. PC is the ONLY requirement.
b. How to determine a motor home meets vehicle exception:
i. Being used on the highway meets exception
ii. Readily capable and found stationary in a place not used for residential purposes- meets
exception (on blocks, location, vehicle license plate, connected to utilities, presence in a setting
that objectively indicates that vehicle is being used for transportation)
1. If motor home meets either of the 2, vehicle exception applies.
2. EXAM: Think about a campground and argue both ways. More like a car or a house?
2. CONTAINERS IN CARS
a. Weird law dude with a briefcase on street, needs a S/W. But the moment you place the briefcase in
a car, you lose this expectation.
b. Background to Acevedo (briefcase in car theory).
i. Chadwick and Sanders (1977-1979) PC that theres a crime in the luggage. D puts luggage
in the car and the cops seize it.
1. Holding: Warrant required, fact that its in a car changes nothing. Rule should be the
same as if he had luggage on the street.
a. This was reversed by Acevedo.
ii. Ross (1982) Maybe need a warrant.
1. If there is PC to search a stopped vehicle, the search can extend to any part of the car
(including containers) that might contain the object of the search.
a. Search for illegal aliens would not cover containers, but search for drugs would.
2. If PC to search entire car, but no specific PC for container, broad PC for entire car is
enough to search containers. But if PC only for container, cant search whole car.
iii. Acevedo (1991) rejects and overrules Chadwick/Sanders.
1. PO may search an automobile AND any containers within it when they have PC to
believe contraband or evidence of crime is present anywhere inside.
2. RULE: When Cops only have PC to a container in a car (i.e. holds contraband or
evidence), there is no warrant required to look at the container.
a. If you find something in the container, it can give you PC to search the rest
of the car, but if you find nothing in container there is NO PC to search the
rest of the car.
b. Protected on the street, but not in a car. Putting bag of weed in truck was PC to
search the container, no warrant was required.
c. No Ownership Requirements to Car Search Wyoming v. Houghton (1999)
i. Facts: P.C. that the driver (male) is doing drugs, Cops search in the back seat and find drugs in
a womans purse (passenger).
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ii. Holding: Search is ok. Once you have PC to search the entire car, you get to search
everything (all containers in it) that is capable of concealing the object of the search.
There is no individualized PC requirement.
1. Ownership is irrelevant, can search everything that can hold object youre searching for
2. Rationale passengers have reduced expectation of privacy, outweighed by substantial
government interest in searching for evidence.
3. No passenger property exception too confusing.
3. PASSENGER COMPARTMENT - AZ v. Gant (2009) case limits law enforcement for SITA
a. Law before this case: Police get to categorically search passenger compartment for any traffic
violation if (1) arrest that is (2) custodial and (3) valid. (Belton searches- not specifically overruled
here but basically not viable anymore under Gant.)
i. But NOT the trunk because weapons cant be accessed there.
b. Assuming lawful custodial arrest of occupant of car, can law enforcement search the passenger
compartment without a warrant?
c. RULE: There is NO automatic free search of passenger compartments incident to arrest
unless either of the 2 Gant conditions are met (reason to believe):
i. Access - Arrestee is unsecured AND within reaching distance of passenger compartment
at time of the search, OR
1. This steps from Chimel area of immediate control doctrine.
ii. Evidence Reasonable to believe the vehicle contains evidence of the crime of arrest.
1. Must be evidence of crime of arrest, so for traffic violation there is no reasonable basis
to believe the vehicle contains relevant evidence.
2. Rule Cops only need reason to believe either of these conditions are met, then no S/W
needed to search interior of car and containers.
a. Can search containers if there is reason to believe evidence of the crime of
arrest can be found in the containers.
3. There is NO search of the trunk that comes with a SITA in the vehicle context.
d. Impact quite small with all the other car exception. Gant is only important with tiny traffic
violations, Cops no longer get the free search of a passenger compartment unless the Gant
conditions are met.
4. CELL PHONE SEARCH INCIDENT TO ARREST: Riley
a. No blanket authorization to search cell phones incident to arrest, but could maybe use the
exigent circumstances exception to check for weapons, etc.
i. Generally, a warrant is required for phone searchesno blanket excuse for look @ cellphone
data in SITA
1. This is really a Robinson/Chimel case.
5. INVENTORY SEARCH - Bertine
a. When Cops lawfully take your car, they get to search the car and containers without a
warrant when making an inventory list (for safety).
b. Requirements:
i. Government seizure of car that is valid.
ii. Standardized police procedures to search impounded car to limit PO discretion
1. Florida v. Wells pushes this
iii. Not acting in bad faith or for the sole purpose of investigation.
6. VEHICLE REVIEW: To keep car exceptions separate, think about the Scope of each search
27
a. Vehicle exception get to search wherever they have PC, including passenger compartment,
containers, and trunk if there is PC to believe contraband or evidence of crime will be found within.
(Carney)
b. Gant SITA lawful custodial arrest, only get to search the passenger compartment (and nowhere
else, i.e. trunk) if Gant conditions are met. If contraband is found in passenger compartment, trunk
can then be searched.
c. RS and fear for safety Can search interior of car, but limited to search for weapons.
d. Terry Stop in Vehicle Can order passengers and driver out of the car.
e. Bertine Inventory Inventory search is ok w/ no PC, this includes the trunk.
SEIZURE
Stop
Nothing
Would RP feel
free to terminate
the encounter/
walk away?
Nothing
Would it violate
REP?
Arrest
De facto
formal
Need P.C
SEARCH
Frisk
Need R.S that
D is armed
and dangerous
Full Search
Need P.C
1. STOP & FRISK: Terry v. Ohio (1968) created reasonable suspicion standard
a. In appropriate circumstances and in an appropriate manner, officers may briefly detain a
person to investigate possible criminal activity.
b. Officers must meet two requirements for a valid Terry Stop and Frisk to be considered
reasonable
i. The stop has to be justified at its inception
ii. The stop has to be reasonable in its scope
c. Facts: Two men casing a building on street, officer approached and patted them down, found
weapons.
d. When does a stop occur? How do we define the line between nothing & stop?
i. A STOP occurs when PO accost an individual and restrain his freedom to walk
away a stop is a seizure and requires RS
1. Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.
2. This means there is a category of nothing that requires no suspicion/
justification at all; not all interactions are seizure.
ii. RS STANDARD for STOP (on the street): Would a RPP feel free to walk away? If
no, this is a stop and the PO must have RS b/c 4th Am is triggered.
1. Factors: threatening presence of several police officers, display of weapons,
physical touching, tone/language indicating compliance is required.
(Mendenhall)
2. RPP to walk away standard doesnt work well off the street, b/c no one feels
free to leave when you are on a plane, bus, etc. Newer rule is.
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iii. RS STANDARD for STOP (off the street): Would a reasonable person feel free to
terminate the encounter? If not, this is a stop and the PO must have RS b/c 4th Am is
triggered.
1. Drayton: This was NOT a seizure because man on bus should have known he
was free to terminate the encounter although he was not advise of his right to
refuse. There were no threats, intimidation, show of force, or blocked exits.
a. Dissent: But he was confined to the quarters of the bus with PO at both
ends.?
iv. A FRISK occurs when there is a careful exploration of the outer surfaces of a
persons clothing all of his or her body in an attempt to find weapons. Reaching
into pockets or hidden areas ONLY if the pat-down reveals the likely presence of a
weapon a frisk is a search and requires RS
1. Need additional justification for a frisk, there must a reasonable suspicion
that the suspect may be armed and dangerous.
2. PHYSICAL FORCE OR SUBMISSION IS REQUIRED Hodari (1991) Police pursuit in
attempting to seize a person does not = seizure.
a. A seizure/stop requires either physical force (laying on of hands or application of physical
force) or submission to the assertion of police authority that has in some way restrained
the liberty of the subject.
i. Running after a suspect or yelling stop is not a seizure that falls in the nothing
category.
ii. Force, touch, intimidating movements, brandishing a weapon, blocking an exit, threats,
commands, and tone of voice can make it a seizure.
b. Show of authority w/o submission is not a seizure.
3. STANDARD FOR SEIZURE Brendlin
a. A traffic stop is a seizure of both the driver and the passengers. No RPP passenger would feel
free to depart w/o police permission.
Definition
i. This case gives passengers 4th am rights to challenge traffic stops.
b. Standard for Stop: Would a RPP feel free to terminate the encounter?
of seizure
i. Seizure requires physical force or submission to authority
summarized
ii. A traffic stop seizes everyone
c. Facts: Car was stopped for no grounds, so seizure of passenger was bad, so arrest for
outstanding warrant was bad (PO was not where he had a right to be).
4. GROUNDS FOR A STOP = REASONABLE SUSPICION
a. RS = For a stop, there must be reasonable suspicion that criminal activity may have been
afoot.
i. More than a hunch or un-particularized suspicion.
ii. RS can arise with a different quantity and from information that is less reliable than
needed for PC to arise.
b. Remember for arrest need PC.
c. Two part Inquiry to determine if police could stop a person:
i. Totality of Circumstances Police can use expertise (Sokolow), and
ii. Particularized Suspicion The TOC assessment must yield a particularized suspicion
that the particular individual being stopped is engaged in wrongdoing, objective basis.
Cortez
1. As grounds for a stop, RS should be individualized and more than a hunch!
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P.C.
Warrant
**Nothing becomes a stop when RPP doesnt feel free to terminate the encounter; to have an okay stop, PO
must have RSIf line crossed to arrest, PO must have P/C to constitute a valid arrest. Still questions remain
when a PO has RS, but not PC, but essentially, without announcing, performs a de facto arrest on D**
1. THE SCOPE OF A SEIZURE: When to police move from a stop (RS) into arrest (need PC)? No overall
standard, just lots of factors. Its a blurry line!!
a. SCOTUS has no standard for this line. Instead its lots of individual factors for crossing the line
from stop to arrest:
i. Time/length/duration of detention
ii. Degree of intrusiveness
iii. Amount of force
1. Factors that generally indicate an arrest occurred (more than a stop):
Factors
a. Movement between 2 places (like the police station, small private room,
Indicia of
etc),
b.
Drawing weapons
an arrest
c. Handcuffing defendant
d. Placing defendant in squad car
iv. No clear standard, just a few cases to examine.
b. FL v. Royer; this was the functional equivalent of an arrest, not a stop.
i. Government lacks P.C (only had RS to stop him) so the evidence suppressed
ii. Length 15 min detainment at airport interrogation room without consent was too long
iii. Intrusiveness movement to smaller private room out of public view more like an arrest.
iv. An investigative detention must be temporary and last no longer than is necessary to
effectuate the original purpose of the stop. The investigative methods employed should
be the least intrusive means reasonably available to verify or dispel the officers
suspicion in a short period of time.
1. This was a more serious intrusion than an investigative stop, so more than RS was
needed to detain him further.
c. Sharpe 20 min detainment was not an arrest b/c the D helped cause the delay by running from the
Cops (evasive actions of first vehicle) and trying to get extra PO assistance.
i. 15 minutes in Royer was not a bright line ruletime is only a factor
ii. Left car to walk up to camper after 20 minutesthis is a stop, not arrest
iii. Look at the degree of intrusion and the amount of force used to determine if a stop has
become the equivalent of an arrest.
d. Caballes D was stopped for speeding and during the encounter a drug dog sniffed the car. Arrest?
i. A dog sniff of the exterior of the car is permitted as long as getting the dog to the scene
does not prolong the otherwise justifiable stop.
1. New SCOTUS case supports this, too.
ii. Default rule A traffic stop is a stop and not an arrest. Only RS needed for a traffic
stop, but need PC to arrest you for a traffic crime.
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1. A lawful seizure can violate the 4th Amendment if its execution infringes
interests protected by 4th Amendment.
iii. Holding: This is not an arrest b/c the stop was lawful at its inception and it was done in a
reasonable manner (there was no delay by the dog sniffing the outside of the car).
e. Arizona v. JohnsonQs by a PO not considered prolongation to make something an arrest
f. Rodriguez v. US (2015 supp case)In Caballes, above, dog sniffed car while PO writing D a ticket
no prolongation so everything okay; here, PO prolongs stop by waiting 7 or 8 minutes until dog
arrives after the warning has been issued to D;
i. Dog sniffs are okay ONLY if it doesnt prolong the stop; dog search not within scope of
traffic stop but only unconstitutional if dog search prolongs the traffic stop, which it did
here.
g. Robinette
i. A warning that the person is free to go is not a prerequisite to a voluntary consensual
interrogation/search.
1. Failure to warn that a person can leave does not make the stop into an arrest.
a. PO does not have duty to tell D the exact termination point of the encounter
2. But if the officer DOES tell D hes free to go and THEN D consents to a search, it
cuts toward voluntary consent.
3. However, if a PO classifies something as an arrest, it will almost certainly be held
to be an arrest, even if PO didnt mean for it to beanother factor to consider when
deciding whether something is a stop or arrest.
h. Factors a PO cant consider in Totality of Circumstances Question:
i. Can consider the flight of the D, but cannot consider Ds refusal to cooperate/consent as a
factor playing into RS/PC analysis
ii. Racebeing Hispanic doesnt give rise to PC or RS belief that you may be an illegal.
i.
DE FACTO SEIZURES The Cops classification is irrelevant unless they call it an arrest.
i. Davis: Taking 24 black boys to police station for fingerprinting was involuntary detention.
More like an arrest than a stop because they were moved.
1. This is a de-facto arrest and is an unconstitutional seizure without PC.
2. Involuntary detention during investigatory stage is not okay without PC.
3. The question may come out differently if POs had fingerprinted in the field
ii. Dunaway: Transported to police station, not arrested, not booked, not told he could leave,
took too longafter saying youre not under arrest
1. De-facto arrests require PC, RS will no longer suffice when brought to the
police station and detained for questioning.
2. This was a de-facto arrest. Need PC for this type of seizure.
3. Moving people to station for even questioning tends to cut for the arrest side
j.
Frisk
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Search Spectrum:
REP Pat Down/Frisk
P.C.
RS that D is Armed and
Dangerous (associated w/
criminal activity is not enough)
33
34
i. Presumptively ok for routine border inspections (going in or out) for safety purposes.
Mere crossing the border is enough, no PC or warrant required. US v. Ramsey
ii. For non-routine personal searches (strip/cavity searches) you need R.S. But not R.S. for
things (like cars)if typical search, PO literally need no grounds.
d. Vehicle Checkpoints (not on the border) [checkpoint ok, roving need R.S.]
i. Fixed checkpoints generally ok w/ no grounds or warrant, but there must be neutral
criteria [which is that they can only search people moving through the checkpoint,
roadblock limits Cop discretion]
1. For roving checkpoints, there must be R.S. b/c w/o this there is no limit on
discretion.
ii. DUI Checkpoint v. Drug Checkpoint
1. Checkpoint for DUI ok b/c special needs beyond traditional law enforcement
(drivers dying, DUI is a serious social problem), limited intrusion, and no
discretion at a checkpoint.
2. Drug roadblock no special need, only traditional police work so checkpoints
arent okay, this is ordinary criminal wrongdoing.
iii. Suspicion-less Stops for Investigation of Past Crimes: (Lidster)
1. Checkpoints are also okay to ask public for help/witnesses in another case if
not for investigating the crime of the driver.
2. Even where the original purpose is administrative, contraband or
incriminating evidence obtained may be admitted in a criminal
prosecution.
a. His DUI was admissible, although the checkpoint was for help with a
past crime.
e. Terrorist Checkpoints ok (McWade v. Kelley)
i. Searches in NYC subways and ferries are ok b/c there was some neutral criteria
(everyone was searched, random searches which limits police discretion, government
interest is high).
f. Search of Students (this is a special need)
i. Public school activity is government action.
ii. No warrant need for school official to search student, but need R.S. at inception for a
full search and the scope must be reasonable.
1. Must have reasonable grounds for suspecting that the search will turn up
evidence that the student is in violation of either school rules or the law
(searching purse for cigarettes, found weed)can do it on diluted grounds of
RS, no PC requiredbalance the schools interest in safe and good learning
environment with students privacy needs
2. Strip search needs higher justification PC is required
a. United School District #1 v. Reddingstrip searching teens for
possession for advil needs higher grounds
g. Drug Testing
i. Safety and security employees (who carry a gun/ employees on front line of drug war)
are in such dangerous positions that drug tests w/o any suspicion or warrant are ok
(government need > individual privacy).
1. But mandatory drug screening not okay for public office candidates (not highrisk, safety-sensitive tasks).
ii. RR employees urine take after a wreck are ok
1. Special needs special danger of this position
iii. Schools can get urine of students in competitive activities. (Acton)
35
36
37
i. CI becomes Hoffas confidant, and hands over this info to the gov.
ii. There is no expectation of privacy and thus no search when one person in the
conversation consents to it being listened to.
1. PUBLIC EXPOSURE/ASSUMPTION OF THE RISK EXCEPTION:
What a person knowing exposes to the public, even in his own home or
office, is not protected by the 4th Amendment.
2. We all assume the risk that there are CIs in our midst and that they are
transmitting our conversation. There is no 4th Am right in a wrongdoers
misplaced belief that a person to whom he voluntary confides his wrongdoing
will not reveal it.
iii. Consent is valid and this isnt a search. Misplaces confidence is not a 4 th Amendment
violation.
Law Enforcement Activity
1 usual, D talks to known gov agent
2- D talks to known gov agent but its taped
(Lopez)
3 D talks to unknown gov agent/ CI (Hoffa)
4 D talks to unknown agent/ CI whos taping &
transmitting (via wire) to 3P PO (White)
Network Surveillance
1. MAJOR TOPICS:
a. 3rd Party Doctrine once you voluntarily convey info to a 3rd party, you assume the risk they
will give it to the government
i. Ex: Miller (banking records) and Smith (pen register case)
b. 1 Party consent If 1 person in conversation consents to giving it to the government, its not
considered a search (Hoffa)
c. Content/Non-Content distinctions
2. CONTENT INFORMATION IS PROTECTED:
a. Ex: text of emails, content of packages, content of phone calls.
b. EMAILS: US v. Warshak (2010)
i. 6th Circuit says that we have a REP in our emails, and that the government needs a
warrant to acquire them.
1. REP Analysis:
a. (1) Subjective expectation of privacy?
b. (2) Society objectively accepts this as a REP? (this is most important)
ii. Facts: Government asked ISP to start saving his emails, which violated his REP. Giving
emails to 3rd party doesnt change your REP in their contents.
iii. Analogize to:
1. Phone calls cannot listen to and intercept them
38
39
b/c records used to show less that D @ home and more that other
members of the household were not.
g. CASES FROM LOWER COURTS (NOT SCOTUS): These new cases make
Jones/Jardines seem very unimportant.
i. Skinner:
1. There is no search when the government pings a cell phones location.
a. Voluntary use of phone and communicated with 3rd party tower. No
physical trespass because its done at cell companys office
(Jones/Jardines).
In Crim pro, we only care about police activity that yields evidence, b/c it can result in a motion to
suppress and the 4th am can apply. If police activity yields no evidence, we dont care.
4TH AMENDMENT ANALYSIS:
o (1) Identify evidence to
be suppressed
o (2) - Look at Police
activity that created the
evidence, then work
backwards to ensure the
police activity was valid.
(1) Evidence to be suppressed?
Cocaine
(2) Cocaine came from frisk, was
the frisk good (at Inception and its
Scope?)
o Search/Frisk Analysis
Inception R.S.
that D is armed and
dangerous
Inception
Answer porn investigation and drugs do NOT get you to Armed and
Dangerous (remember crime alone doesnt matter). An anonymous tipster thats
scared of D is not enough.
Scope quick pat down for weapons,
Cop exceeded the law here. Hard to argue that a vial is a weapon.
o Seizure:
Stop Standard Would a reasonable person feel free to terminate the encounter?
No, guns are drawn and this is clearly a stop.
Arrest intensity and duration (answer maybe an arrest)
Guns cut for arrest, but he wasnt moved and it was quick.
Probable Cause Required - If arrest is good, cops get a broader scope at
inception; like Chimel SITA.
o Inception P.C. = fair probability or substantial chance.
o Anonymous tip (Totality of Circumstances w/ these 3)
Reliability none
40
Basis of knowledge no
Corroboration yes (from Georgia, assumed non at Best
Western)
(1) Evidence to be suppressed? Other stolen items in search of their persons
(2) Is that search ok? From formal arrest so this is a SITA
o SITA Scope area immediately w/in Ds control fine here
o Inception need a good arrest then
No warrant, this is in a public place
A good arrest requires probable cause fail probability or subl chance, examining the
ToC
Facts for P.C.:
(1) Ds told a false story (from police station)
(2) Proximity of Ds to Crime (facts from police station)
(3) Police Expertise
(4) Screwdriver which he denies owning
(5) Walking down street w/ TV
o First 2 facts came from placing them in an unlocked room. If invalid, strike them from P.C.
determination because they are probably fruits of an unCl seizure.
o When they took Ds downtown, this became a de facto arrest:
Moved to police station, 1 hr (length), ignore police categorization
Warrant not needed public arrest
o P.C. based on 3-5? Close call; other cannot be used because they are bad fruits.
41
crime
trial
conviction
42
43
44
1. Dont worry about this case, it doesnt add any law. PO actually knew it was
likely to be coercive, hence the tape recorder. Court gets it wrong.
2. Officers were aware of possibility of incriminating statement, but it wasnt their
purpose in letting her in the room. Court says being aware of the possibility is
NOT should know.
iv. Class Example: D steals furs, Cops dump the furs by the Ds cell; this is interrogation
b/c there is an assumption of guilt.
d. BOOKING QUESTIONS EXCEPTION TO INNIS: Innis
i. Questions normally attendant to arrest and custody are NOT interrogation
1. Name, address, and related matters are not investigatory, so not a violation of
5A Miranda.
e. UNDERCOVER EXCEPTION TO MIRANDA (Illinois v. Perkins)
i. Miranda warnings are not required when the suspect is unaware that he is
speaking to a PO and gives a voluntary confession.
1. Police dominated atmosphere and compulsion are not present in this situation
ii. PO poses as fellow prisoner and asks suspect about the crime.
1. Because not PO dominated environment, court finds no compulsion, and
therefore, no interrogationokay that fellow inmate AKA undercover agent
didnt mirandize D before he asked D if hed ever done anyone
iii. Definitely in custody and in interrogation b/c they ask Have you ever done anyone?
Too bad.
f.
45
Invocation or Waiver
46
The voluntariness of a waiver of Miranda rights it separate and distinct from the determination of the
voluntariness of the confession under the Due Process Clause.
1. INVOKING THE RIGHT TO COUNSEL:
a. CAN ONLY ASK FOR COUNSEL: Fare v. Michael C
i. D can only invoke your right to an attorney, you cannot invoke your right to other people.
1. No right to see probation officer, saying probation officer doesnt per se invoke
right to counsel. Or wife.
b. D MUST INVOKE RIGHT HIMSELF: Moran v. Burbine
i. Ds sister gets D an attorney, but Cops dont tell the D that lawyer called.
ii. ONLY the defendant can invoke his right to counsel. Things the D doesnt know does
NOT affect validity of his waiver.
1. Attorney or sister cannot invoke for him.
iii. Police lying to this attorney doesnt affect Ds waiver
1. The D must know! D needs actual knowledge for this to affect his knowing waiver.
iv. Waiver: knowing, intelligent and voluntary.
c. RIGHT TO COUSEL CANNOT BE DIVIDED UP: Connecticut v. Barrett
i. There is no qualified or conditional waiver.
ii. Ill talk, but wont give a written statement without lawyer.
1. This was a waiver of his entire right to counsel, cant chop up the right into smaller
pieces (talking/signing).
d. HOW TO INVOKE THE RIGHT TO COUNSEL: Davis
i. Must invoke the right to counsel clearly and unambiguously!!!
ii. D said maybe I should talk to a lawyer. This isnt an invocation.
1. D bears burden of invoking right to attorney must unambiguously request atty,
clarity is required
iii. Cops dont have to stop questioning after ambiguous attorney reference.
2. INVOKING THE RIGHT TO SILENCE:
a. Berghuis (2010)
i. The right to silence must also be clearly and unambiguously invoked.
1. The right to silence and right to counsel are SEPARATE QUESTIONS, but
invocation of both must be unambiguous.
ii. Remained silent 3 hours, but cannot infer invocations from conduct, must be express!
3. WAIVER OF THE RIGHT TO SILENCE:
a. REMEMBER: Invocation? Hard to get, need clarity!! Waiver? Easy to get, dont need clarity.
b. Waiver must be voluntary, and made with full awareness of the right being abandoned
(knowingly, intelligent).
i. Miranda says knowing and intelligent, Berghuis says knowing, intelligent, and voluntary
(know this definition).
ii. 5th Amendment rights are harder to waive than 4th Amendment rights.
iii. IMPLIED WAIVER: (NC v. Butler)
1. Berguis waived his right to silence here, it was inferred when he started talking. A
few Yess after 2.75 hours is waiver.
a. You cannot infer invocation, but you CAN infer waiver.
2. In some cases waiver can be clearly inferred from the actions and words of the
person interrogated, express waiver is NOT required.
a. Ex: silence, understanding of rights than a course of conduct indicating
waiver
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i. But presume the D did not waive, the prosecutions burden is high.
b. Saying he would talk but not sign was an implied waiver of rights.
c. Almost nothing left of waiver; Court is very willing to find waiver and its
easy to prove
iv. Process: Miranda given (knowing) Understood Uncoerced statement = waiver
c. IS SILENCE ON SOME QUESTIONS A WAIVER? Salinas: Plurality Opinion
i. Facts: D came to station to clear himself of murder. Remained silent on shotgun questions,
answered others. Prosecutor used silence at trial.
ii. 3 Groups of Judges:
1. 3 said NO 5th Amendment because privilege is invoked by remaining silent
2. 2 said No 5th Amendment because even if he tried to invoke there is no 5th
Amendment right to silence before custody, and there was no custody here.
3. 3 said 5th Amendment violation because shuffling and silence should be inferred as
an invocation of the right to remain silent.
4. Plurality Rule: Welling thinks (2) No 5th Amendment right to remain silent
unless Miranda prerequisites are met, including custody.
YES
Which Right?
Rt to Silence
Rt. To Counsel
Interr. Ceases
Interr. Ceases
Can be resumed?
(Mosley)
Can be resumed?
No, except..
Can resume if
Mosley factors met
Right is satisfied
(atty present at interr.)
NO
D waived rights? (Vol., knowingly, intelligent)
14 day break
in custody (Shatzer)
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D waived right to
counsel (Edwards)
(D initiates + V/K/I)
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ii. Miranda is the prevailing constitutional doctrine, and where it conflicts with 3501,
Miranda is the winnerCourt here says that Miranda is based in the US Constitution
c. **Note Miranda didnt repeal the Due Process/Coercion doctrine. It just added to it.
i. Two Constutional Protections for Confessions:
1. Due Process Voluntariness (totality)
2. 5th Amendment
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i. DPC has a broader protection than Miranda (ex: questioning when suspect is NOT in
custody, questioning by private citizens). DPC always applies even when Miranda
does not (which requires custody, interrogation, testimonial evidence).
1. Ex: Fulimente when undercover cop deliberately elicited. No Miranda required,
but DP would apply.
b. IMPEACHMENT PURPOSES: If a confession is invalid under DPC b/c its involuntary, it
cannot be used for ANY purposes; statements obtained in violation of Miranda can be used to
impeach if D takes the stand.
c. PHYSICAL EVIDENCE FRUITS INADMISSIBLE IF DP VIOLATION: Fruits of an
invalid, involuntary confession (DP violation) are ALL inadmissible, even physical evidence
(differs from Miranda and 5A which never apply to physical evidence).
2. Miller v. Fenton Due Process Standard is voluntary (not coerced, product of free choice) based on the
totality of the circumstances
A. DUE PROCESS VOLUNTARY CONFESSION REQUIREMENTS:
i. Voluntary, based on the Totality of Circumstances (all factors),
Due Process
ii. Police subjected the suspect to coercive conduct
Requirements
iii. Ds will was not overborne- Confession was the product of free choice, not coercion
iv. Not extracted by any threats or implied promises, however slight (this factor is very
diluted)
b. Millers important factors under ToC (what do we look for?):
i. BALANCE DS CHARACTERISTICS & POLICE CONDUCT FOR ToC:
Balance and compare the Ds personal characteristics with the Police conduct to find
voluntariness/ free choice.
ii. Ds Personal Characteristics: Irrelevant unless there is police action/coercion
1. Age (32), Education, Mental stability, Sobriety, Experience with justice system
(Jail time?)
a. Preston: 18 and intellectually disabled can make it involuntary. PO
knew he was disabled.
2. Considerable pain/injury, mental & physical illness
3. Its implied that b/c D is not young and not mentally disabled that this is ok
iii. Police Conduct: Must amount to coercive police activity
1. Length of interview and intensity of questioning BIG factor (only 53 minutes)
2. Miranda warnings given, and were they waived
3. Threats
4. PO sort of implied promises (court really doesnt care about these)
5. Lying about factual information (V is still alive, V just died)
iv. This is voluntary under the DPC; the police actions did not produce psychological
pressure strong enough to overbear the will of a mature, experienced man, who was
suffering from no mental or physical illness and was interrogated for less than an hour
at a police station close to his home.
3. US v. LeBrun (2004) Court ignores the promise not to prosecute based on ToC
a. Confession was still admissible despite fairly explicit police promise.
i. Courts used to admit almost anything bc they didnt believe people falsely confessed,
but this is changing now.
b. Facts: cops promise D that if you confess, no prosecution.
c. Holding: this is still voluntary due to lots of other factors:
i. D is highly educated (went to 1 yr of law school)
ii. Length was only 33 minutes
iii. D testified that he had a subjective understanding of his Miranda rights.
d. Case shows that the promise portion of Bram standard is almost meaningless
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iii. 6A right attaches ONLY at the beginning of proceedings for EACH crimeMuch
different than 5A attachment, which not offense specific
7. WHAT IS CONSIDERED AN OFFENSE We must parse apart closely related charges Texas v.
Cobb
a. Blockburger Test: To be separate offenses, EACH offense requires proof of an element the
other does not. (BOTH must require a different element)
Blockburger is
i. If yes these are separate offenses for 6th Am purposes
pretty narrow,
1. Different crimes means you may use their statements about the unindicted
basically just lesser
crime b/c the 6th hasnt attached.
included offenses
ii. If no same offense, term of art that basically includes lesser included offense
are considered the
1. Cannot deliberately elicit statements about 1 OR 2 under 6A.If seen as lesser
same offense.
included offense of the same crime under Blockburger test, considered the same
crime for 6A violations and waiverIf 6A attaches for 1 crime, attaches for
LIO
2. I.eIf I have been indicted on a murder charge and waive 6A right to counsel, I
have also waived 6A right to counsel regarding PO Qs about manslaughter
charge
b. Example 1:
Different offense. If indicted for crime 1, and makes
1. Crime 1: A B C
statements about 2, 2 comes in. BOTH require proof of
2. Crime 2: A B D
different elements.
c. Example 2:
Same offense: Only 1 requires proof of a different
1. Crime 1: A B C
element. #2 is lesser included of #1.
2. Crime 2: A B
d. Food for thought on the 6A:
i. No 6th Am law on invocation assumed you have it, but 6A can be waived
ii. 5th Am doesnt apply when police are undercover (Miranda not necessary because you
assume the risk that you are talking to the police).
1. 6th Am does cover undercovers, see Active v. Passive (cant deliberately elicit if
undercover, but can be silent)
iii. Waiver of 5th and 6th is the same, but applied more strictly in 6A, must be clear.
8. DELIBERATE ELICITATION & UNDERCOVER AGENTS:
a. ACTIVE & PASSIVE AGENTS To find a 6th Am Violation with an undercover agent
there must be state action. The agent must deliberately elicit the statements.
i. Undercover agent just sitting there is NOT a 6A violation.
b. Pseudo state action requirement the agent must do something to get the words
i. Line if government deliberately elicits thats a violation. No violation if the agent just
sits there and listens. Undercover must do something to get the remarks (thats the state
action).
c. US v. Henry Agent had some conversations with D as undercover cellmate
i. This violates 6A b/c agent deliberately elicited by doing some behavior to make the
incriminating statements happen.
ii. Active listener case and comes to question the deliberately eliciting behavior of the
government agentEven though FBI informant didnt intentionally ask D Qs and elicit
info through Qs, ct holds FBI could be reasonably sure that D wouldve given answers
enough for deliberate elicitation for 6A violation.
d. Kuhlman - Agent just kept his ears open and only said didnt sound too good. Court says that
this is ok and NOT a 6A violationlimits Henry above and keeps listening posts from violating
6A
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Fruits Doctrine
1. FRUITS DOCTRINE: Evidence must be a fruit of a constitutional violation to be excluded
under the exclusionary rule.
a. This limits the impact of the exclusionary sanction.
i. REMEMBER: Rationale for the exclusionary rule is to deter police misconduct.
b. (1) BUT-FOR CAUSATION REQUIREMENT: For there to be a fruit, the constitutional
violation must be a but-for cause of finding the evidence seeking to be excluded.
i. But-for cause is necessary, but not sufficient for evidence to be considered a fruit.
c. (2) COME AT CAUSATION: Can we be sure this evidence was come at by the
exploitation of that constitutional violation?
i. Cannot be attenuated, and must meet the public policy needs.
2. PROCESS FOR FRUITS DOCTRINE:
a. Identify the evidence
b. Trace backwards to see if its a result of a constitutional violation to see if exclusion remedy
should apply:
i. Default fruits applies to all amendment; 4, 5, 6, or Due Process
ii. Causation: The violation is but-for cause of evidence AND was come at by the
exploitation of that illegality.
1. Exceptions: too attenuated, independent source, and inevitable discovery (these
are limits on the fruits doctrine).
3. BACKGROUND CASES:
a. Wong Sun v. US (1963)
i. Fruits doctrine applies to statements (testimonial evidence) AND physical
evidence. BOTH can be suppressed.
1. STANDARD: Whether, granting establishment of the primary illegality
(the evidence) has been come at by exploitation of that initial illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.
a. If secondary evidence was discovered by exploitation of the initial
illegality, it must be suppressed.
b. If it is obtained by means sufficiently removed from the initial
illegality, it is admissible.
ii. Causation = But-for and Come at by exploitation of that illegality
iii. Attenuation = passage of time between illegality and evidence can dissipate the taint
1. If attenuated, the evidence is NOT suppressed as a fruit because the causal
connection is remote.
b. EXCEPTIONS TO FRUITS WHERE SUPPRESSION WILL NOT APPLY:
i. Independent Source Exception If government finds evidence not through the
violation, but through a different clean source then it is not a fruit b/c no causation
1. Murray v. US
a. Marijuana wearhouse break in casePO go into wearhouse early,
discover marijuana, then obtain search warrant but not on grounds of
seeing marijuana earlier; marijuana is admissible because S/W obtained
on independent grounds of initial marijuana sightingMarijuana not
suppressed as a fruit
ii. Inevitable Discovery/Hypothetical Discovery Exception If police would have
found this evidence anyway and it was just a matter of time it is not a fruit (e.g. dead
bodies). Nix v. Williams (Williams II)
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c. **Note Apply the Suppression Remedy narrowly, its the last resort b/c costs are so high.
Fruits are limited by the type of evidence and type of violation.
Chart of violations, is the evidence suppressed?
Constitutional Violation (tree)
4A Illegal Search (Brown)
4A Payton (Harris)
4A Knock and Announce (Hudson)
4A Illegal Entry (Segura and Murray)
5A violation for statements without Miranda
warnings (Patane)
6A Violation (Nix)
Evidence (fruit)
Confession suppressed, subsequent Miranda doesnt
purge taint of illegal search
No suppression for statements outside the house (for a
Payton violation), suppress statements in the house
No suppression at all, EVER for K&A violation
No suppression of stuff seen and stuff not seen b/c of
the Independent Source of the warrant
5th NEVER suppresses physical evidence b/c of the
text (must be testimonial to be suppressed)
Court assumes fruits apply to the 6th
4. Brown v. Illinois You must examine whether statements are violations of the 4A, too, not just 5A and
6A.
a. Subsequent Miranda warnings after a 4A violation do not purge a taint.
b. Facts: Illegal 4A arrest Miranda warnings Confession
c. Holding: Miranda doesnt purge the taint of the 4th Amendment violation
i. **Note w/ confessions, look at all amendments 4,5,6 and DPC
d. Factors to determine if that taint is purged:
i. Miranda warnings given (cuts for confession NOT being a fruit)
ii. Totality of circumstances
iii. Length of time between constitutional violation and evidence (long time can make taint
attenuate)
iv. Presence of intervening circumstances (more links in the chain look like attenuation)
v. Purpose/flagrancy of official misconduct (more deliberate should suppress more links to
deter future PO misconduct)
5. PAYTON IN-HOME ARREST VIOLATION: NY v. Harris no suppression for fruits outside of
home from a Payton violation
a. Facts: Payton violation b/c Cops are in a house w/o a warrant (need warrant for in-home arrest).
The D makes statements in the house and outside of house.
b. Holding: A Payton violation is not a continuing violation. The statements in the house are
fruits, but statements outside the house are not. Payton only covers the bad entry to the
home, not the subsequent statements at the police station.
c. 4A violation dissipated when PO took D outside his home to the police stationconfession
outside home admissible and not a fruit of the illegal Payton 4A violation of entering home
without a warrant.
i. Significance: now we ask what kind of constitutional violation?
6. K&A VIOLATION HAS NO FRUITS: Hudson
a. If constitutional violation (tree) is a K&A violation that will NEVER support the
exclusionary remedy, that tree NEVER bears fruit. Any subsequent evidence is admissible
i. Nothing is EVER the fruit of a knock and announce violation.
ii. No suppression this is a bright-line rule because there is no deterrent effect.
iii. Whole category of 4A violation off the table as fruit-bearing here because violation not
serious enough to produce fruit.
7. INDEPENDENT SOURCE EXCEPTION:
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a. Segura & Murray In both cases, the cops illegally entered a house and may or may not see
evidence, but later acquired a search warrant not using information gained for the search.
i. Was the warrant a genuine independent source of the information to remove the
taint of the prior bad entry?
ii. Segura: Bad entry/no warrant see evidence go get warrant re-enter house
1. Can admit evidence NOT seen in original entry, evidence seen originally is
suppressed as a fruit.
iii. Murray: Expands Segura by saying the evidence seen originally CAN be admitted b/c
the warrant is an independent source.
b. Holding: Evidence is admissible b/c the warrant was based on independent sources that were
sufficiently distinguishable to purge the evidence of any taint.
c. RULE Subsequent evidence after a bad search is not a fruit if PO can find different
means (independent sources) for PC for the warrant.
8. INEVITABLE DISCOVERY EXCEPTION: Nix v. Williams (Williams II)
a. Facts: Christian burial speech case
i. 6A violation Statements (found a fruit in Brewer) excluded can body be admitted
at trial?
b. If PO would (not could) have found evidence anyway by another lawful means other than
the constitutional violation, the evidence is NOT a fruit and should NOT be suppressed.
i. MUST establish by POE that the evidence inevitably would have been discovered by
lawful means.
ii. Holding: Body should not be suppressed, b/c court creates inevitable discovery
doctrine. It was just a matter of time before dead body was found, inevitable.
c. Suppression remedy applies to 6A, just like it does to 4A and 5A.
i. This case is the first time a 6A violation is a tree with fruit. Past cases were all 4A
violations.
9. CAUSATION- Hudson How to prove causation for fruits?
a. BOTH but-for AND come at by exploitation of illegality causation are required.
i. But-for alone is not enoughneed extra
10. 5A BAD CONFESSION NOT A POISONOUS TREE FOR PHYSICAL EVIDENCE -Patane
a. 5A is NEVER a poisonous tree for physical evidence. Physical evidence obtained after a 5A
violation is admissible, but testimonial evidence obtained after a 5A violation are NOT
admissible (4A, 6A, & DP apply to physical evidence)
i. 5A violation Physical evidence, no suppression
1. 5A cant be violated by introduction of non-testimonial physical evidence
ii. 5A violation Testimonial evidence, suppressed at trial
1. 5A only violated by introduction of statements at trial.
11. DP, 4A, 6A VIOLATIONS CAN BE POISONOUS TREE FOR PHYSICAL EVIDENCE Seibert
a. Physical evidence can be an excluded fruit of a DP violation (and 4A & 6A violations).
b. Really bad faith 5A violation in sequential confession case will keep out statement 2.
c. Recall, Elstad held that in sequential confession cases, the 2nd statement is NOT a fruit of the 1st
statement if negligent/good faith failure to give Miranda warnings.
d. But Seibert held that the statement CAN be a fruit of 1st violation if it is really bad faith,
reckless, or purposeful failure to give Miranda warnings.
i. ASK: Whether Miranda warnings can reasonably be found effective in these
circumstances? See below:
Physical comes in b/c text of 5th says only testimonial
is excluded (excluding physical evidence wont deter
police)
5A Violation
Statement 1
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3.
4.
5.
6.
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